This unfair labor practice case is before the Authority on exceptions
to the attached decision of the Administrative Law Judge filed by the
Respondent. The General Counsel filed an opposition to the Respondent's
exceptions.(1)

The consolidated complaint alleges that the Respondent violated section
7116(a)(1), (5), and (8) of the Statute by: (1) refusing to furnish the
Union with unsanitized copies of the performance appraisals of bargaining unit
and non-bargaining unit employees (Case No. 1-CA-10350) and unsanitized
performance award data on non-bargaining unit employees (Case
No. 1-CA-10351); and (2) failing to respond to two data requests from
the Union in a timely manner.

Upon consideration of the Judge's decision and the entire record, we
adopt the Judge's findings, conclusions, and recommended order only to the
extent consistent with this decision. For the reasons stated below, we find
that the Respondent did not violate the Statute by failing to furnish the Union
with unsanitized copies of the requested performance appraisals because
disclosure of this information is prohibited by the Privacy Act, 5 U.S.C.
§ 552a.(2) Accordingly, we dismiss the complaint filed in Case
No. 1-CA-10350. However, we find that the release of the requested
performance award data in Case No. 1-CA-10351 is not prohibited by the
Privacy Act and that the information is necessary, within the meaning of
section 7114(b)(4) of the Statute. Consequently, we conclude that the
Respondent failed to comply with section 7114(b)(4) by refusing to provide that
data and thereby violated section 7116(a)(1), (5), and (8) of the Statute. We
also conclude, in the absence of exceptions to the Judge's conclusion, that the
Respondent violated section 7116(a)(1), (5), and (8) of the Statute by failing
to respond to the Union's requests for information in a timely manner.

II. Judge's Decision

The facts are set forth fully in the attached Judge's decision and
briefly summarized here. The Union submitted data requests to the Manager of
the Bradley Air Traffic Control Tower for unsanitized copies of performance
appraisals for all bargaining unit and non-bargaining unit employees at the
facility, and for unsanitized performance award data on non-bargaining unit
employees. The Union requested that the award recipients be identified "by name
and position." General Counsel's Exhibit No. 3. The Union stated that it needed
the performance appraisal data to complete an investigation for bargaining unit
employees concerning performance evaluations, procedures, processes, and
determinations and to ensure that bargaining unit employees are not treated
differently from nonunit employees because they exercise their rights under the
Statute. The Union stated that it needed the performance award data to discuss
the recognition and awards program in accordance with Article 21, Section
4 of the parties' agreement and to ensure that bargaining unit employees are
not treated differently from nonunit employees because they exercise their
rights under the Statute.(3)

Several weeks after the requests were submitted, the Respondent's
Manager informed the Union that the requests would be forwarded to the Federal
Aviation Administration's (FAA's) New England Regional Office for processing.
However, neither the Regional Office nor the Respondent provided any further
response to the Union's requests prior to the issuance of the complaint in this
case.

The Judge concluded, in a decision issued prior to Department of
Defense, that the Respondent's refusal to furnish the unsanitized
performance appraisal and performance award data violated the Statute. In
reaching this conclusion, the Judge stated that the Union testified that it
needed the performance appraisal data in unsanitized form to determine how an
employee was being appraised and whether there had been favoritism shown toward
non-bargaining unit employees. The Judge stated that the Union testified that
it needed the performance award data in unsanitized form to: (1) associate
what an employee did to receive the award with the award that was given; (2)
discuss the recognition and awards program in labor-management meetings; (3)
determine whether bargaining unit employees who exercised their rights under
the Statute were treated differently from nonunit employees; and
(4) assess a potential grievance. Considering the two information requests
together, the Judge found that disclosure of the requested information
concerning bargaining unit and non-bargaining unit employees in an unsanitized
form was not prohibited by the Privacy Act. The Judge stated that the
Respondent conceded that the performance appraisal data as to bargaining unit
employees was necessary. The Judge found that the performance appraisal and
performance award data concerning non-bargaining unit employees was also
necessary under section 7114(b)(4) of the Statute, was reasonably available and
normally maintained, and did not constitute guidance, advice, counsel, or
training related to collective bargaining.

Finally, the Judge found that the Statute requires an agency to respond
in a timely manner to requests for information from an exclusive representative
even if the response is that the information sought does not exist. The Judge
concluded that the Respondent violated section 7116(a)(1), (5), and (8) of the
Statute by failing to provide a meaningful response to the Union's data
requests until after the complaint was issued.(4) The Judge ordered the Respondent to: (1) furnish the
requested information; (2) respond in a timely manner to the Union's
requests for data made pursuant to the Statute; and (3) post notices
concerning its unfair labor practices, signed by the Respondent's Regional
Administrator, at its facilities in the New England Region.

III. Positions of the Parties

A. Respondent's Exceptions and Supplemental Submission

The Respondent contends that the performance appraisal information
requested by the Union concerning non-bargaining unit employees is not
"necessary," within the meaning of section 7114(b)(4) of the Statute, because
it concerns employees in dissimilar positions and, therefore, is "unrelated to
the need identified by the Union" and not "necessary and relevant for purposes
put forth in [the Union's] request." Agency's Brief at 9, 10. The Respondent
argues that the Judge impermissibly permitted the Union, for the first time at
the hearing, to add to its reasons why the requested performance appraisal
information is necessary within the meaning of the Statute.

The Respondent also contends that disclosure of the requested
performance appraisal and performance award information in this case is
prohibited by the Privacy Act because employees have a substantial privacy
interest in their performance appraisals. The Respondent asserts that the
release of the performance award data would identify those employees who did
not receive an award and would have an impact on their personal privacy as well
as the privacy of those employees who received awards. The Respondent argues
that the disclosure of the information is an unwarranted invasion of personal
privacy and does not shed light on how the agency performs its statutory
duties--promoting the use of civil aviation and establishing standards to
ensure the safety of the public on the ground. The Respondent asserts that
neither the requested performance appraisal nor performance award information
reveals anything about aviation safety or promoting the use of civil
aviation.

The Respondent argues that the Judge incorrectly balanced the
employees' privacy interests against the public interest embodied in the
Statute when he concluded that the Privacy Act did not preclude disclosure of
the information. The Respondent asserts that the only relevant public interest,
as set forth in Department of Defense, is the interest in letting
citizens know what their Government is up to.

The Respondent excepts to the Judge's conclusion that the Respondent
violated section 7116(a)(1), (5), and (8) of the Statute and requests that the
Judge's decision be set aside and the complaint dismissed in its entirety.

Finally, the Respondent excepts to the Judge's remedy requiring the
FAA's New England Regional Administrator to sign and post a notice at all the
FAA's New England regional facilities. The Respondent argues that this case
concerns only the Bradley Air Traffic Control Tower at Windsor Locks,
Connecticut, and does not result from actions or inactions on the part of the
FAA Regional Administrator. The Respondent argues that if a remedy is required
in this case, the appropriate remedy would be a cease and desist order signed
by the Bradley Air Traffic Control Tower Manager and posted only at that
location.

B. General Counsel's Opposition and Supplemental Submissions

The General Counsel asserts that the performance appraisal data as to
bargaining unit and non-bargaining unit employees, as well as the performance
award data as to non-bargaining unit employees, is necessary for the Union to
determine whether there is disparate treatment between bargaining unit and
non-bargaining unit employees and "to evaluate grievances based on disparate
treatment." Opposition at 1.

The General Counsel contends that the unsanitized performance
appraisals of bargaining unit and non-bargaining unit employees are not exempt
from disclosure under the FOIA. According to the General Counsel, disclosure of
this data is supported by Authority precedent sustaining the disclosure of
unsanitized appraisals.(5) The General Counsel argues that disclosure of the requested
appraisal information in this case will "'shed light on an agency's performance
of its statutory duties' and reveal to the public 'what the [G]overnment is up
to,' because they show how well (or poorly) the agency's employees are doing
their jobs." Supplemental Brief at 3. Further, the General Counsel asserts
that disclosure of the requested information will also indicate whether the
Respondent is treating its employees fairly and in accordance with merit
principles, facilitate the early resolution of potential grievances, and
contribute to the proper administration of performance appraisal systems.

Additionally, the General Counsel maintains that the Respondent's
employees are engaged in rendering vital air traffic control services and that
such work involves personal contacts with the public. The General Counsel notes
that the Judge found that the data included matters related to "operational
errors, flight assists, on-the-job training," and the evaluation of unit and
non-bargaining unit employees' performance of air traffic work, all of which
"have critical implications for the safety of the traveling public." Id.
The General Counsel argues that "[u]nder these circumstances, and considering
the Respondent's statutory mission, disclosure of the unsanitized data serves
'the only relevant public interest in the FOIA balancing analysis[,]' as the
Court put it in Department of Defense[.]" Id. The General Counsel
asserts that "recent initiatives" by "the Executive Branch[,]" to make
Government work better and be more accountable to the public it serves, "add
impetus to the objectives served by disclosure" of the requested information.
Id. at 4. According to the General Counsel, this national policy is
served by disclosure of the requested appraisal and award data in this case.

Finally, the General Counsel argues that a posting which would be
signed by the FAA Regional Administrator and posted throughout the New England
Region is proper because the data requests were forwarded by the manager of the
Bradley Air Traffic Control Tower to the New England Regional Office for action
and the New England Regional Office failed to respond or provide any data.

IV. Analysis and Conclusions

A. Disclosure of Performance Appraisal Data Is Barred by the Privacy
Act

We find that disclosure of the requested performance appraisal data for
bargaining unit and non-bargaining unit employees is barred by the Privacy Act
because the disclosure would constitute a clearly unwarranted invasion of
personal privacy under FOIA Exemption 6. Accordingly, without addressing
whether this information is necessary under section 7114(b)(4) of the Statute,
we conclude that the Respondent did not violate the Statute by refusing to
provide the information.

In FAA, New York TRACON, 50 FLRA at 345-46, which involved
the disclosure of performance appraisals of bargaining unit employees, we set
forth the analytical approach we will follow in assessing an agency's claim
that disclosure of information requested under section 7114(b)(4) of the
Statute would constitute a clearly unwarranted invasion of personal privacy
within the meaning of FOIA Exemption 6 and, therefore, is prohibited by the
Privacy Act. We stated that an agency asserting that the Privacy Act bars
disclosure is required to demonstrate: (1) that the information requested
is contained in a "system of records" under the Privacy Act; (2) that
disclosure of the information would implicate employee privacy interests; and
(3) the nature and significance of those privacy interests. If the agency
makes the requisite showings, the burden shifts to the General Counsel to:
(1) identify a public interest that is cognizable under the FOIA; and
(2) demonstrate how disclosure of the requested information will serve
that public interest. Although the parties bear these burdens, we will, where
appropriate, consider matters that are otherwise apparent.

We held in FAA, New York TRACON, for reasons more fully
explained there, that the only relevant public interest to be considered in
this context is the extent to which the requested disclosure would shed light
on the agency's performance of its statutory duties, or otherwise inform
citizens as to the activities of their Government. More particularly, we held
that the public interest in collective bargaining that is embodied in the
Statute, or specific to a union in fulfilling its obligations under the
Statute, will no longer be considered in our analysis under Exemption 6 of
the FOIA.

Once the relevant interests are established, we will balance the
privacy interests of employees against the public interest in disclosure. Where
this balance leads us to conclude that the privacy interests are greater than
the public interest at stake, we will find that the requested disclosure would
constitute a clearly unwarranted invasion of personal privacy under
Exemption 6 and, therefore, that disclosure is "prohibited by law" under
section 7114(b)(4) of the Statute; accordingly, the agency is not required to
furnish the information, unless disclosure is permitted under another exception
to the Privacy Act. In contrast, where the balance tips the other way, because
the public interest is greater than the privacy interests, we will conclude
that disclosure would be required under the FOIA and, therefore, is not
prohibited by the Privacy Act.

Applying the analytical framework set forth in FAA, New York
TRACON, we note that the Respondent does not address whether the requested
performance appraisal information is contained in a system of records. However,
as we found in FAA, New York TRACON, 50 FLRA at 346,
performance appraisals of Federal employees are contained in the OPM/GOVT-2
system of records entitled "Employee Performance File System Records."
See 57 Fed. Reg. 35698, 35709 (Aug. 10, 1992). We find that it is proper
to take official notice of that fact here.

We find that the General Counsel and the Respondent have demonstrated,
respectively, that disclosure of unsanitized copies of the performance
appraisals of all bargaining unit and non-bargaining unit employees would
implicate employee privacy interests and serve the public interest. We find
further, in agreement with the Respondent and for reasons discussed more fully
in FAA, New York TRACON, that employees have significant privacy
interests in shielding their individual performance appraisals from public
view. SeeFAA, New York TRACON, 50 FLRA at 347. The
Union's request for performance appraisals encompasses all unit and
non-bargaining unit employees' performance appraisals, whether favorable to the
employee or not. In this regard, privacy interests may be heightened with
respect to derogatory information in an appraisal. SeeGilbey v.
Department of Interior, No. 89-0801(RCL), 1990 WL 174889 (D.D.C.
Oct. 22, 1990). However, such interests exist even as to favorable
information, such as favorable performance appraisals. SeeFLRA v.
United States Department of Commerce, National Oceanic and Atmospheric
Administration, National Weather Service, Silver Spring, Maryland,
962 F.2d 1055, 1060 (D.C. Cir. 1992); Ripskis v. Department of Housing
and Urban Development, 746 F.2d 1, 3 (D.C. Cir. 1984)
(Ripskis).

We also find, in agreement with the General Counsel, that release of
the requested performance appraisals would shed light on Government operations
and, therefore, would serve the public interest. In particular, disclosure of
unsanitized appraisals would permit review of the ways in which the Respondent
administers its performance appraisal systems and monitors and rewards the
quality of the work products generated in fulfilling its statutory mission.

However, our review of the record leads us to conclude that the public
interest articulated by the General Counsel and cognizable under Exemption 6 of
the FOIA would not be enhanced by the disclosure of the requested performance
appraisal data in a manner that includes names and other identifiers.
See, e.g., U.S. Department of the Interior, Bureau of Mines,
Pittsburgh Research Center, 51 FLRA 276, 282 (1995); U.S. Equal
Employment Opportunity Commission, 51 FLRA 248, 255 (1995); U.S.
Department of Transportation, Federal Aviation Administration, Jacksonville Air
Traffic Control Tower, Jacksonville, Florida, 50 FLRA 388, 393-94
(1995)(FAA Jacksonville).

In this connection, disclosure of the unsanitized performance
appraisal data may well enhance the Union's ability to use the
information to determine whether there is disparate treatment between
bargaining unit and non-bargaining unit employees and to evaluate grievances
based on disparate treatment. However, this interest is specific to the Union
as the requesting party and, as such, may not be considered in balancing
interests under FOIA Exemption 6.(6)SeeSocial Security Administration, San Francisco
Bay Area, 51 FLRA 58, 65 (1995) (SSA). SeealsoDepartment of Defense, 114 S. Ct. at 1014 ("[A]ll FOIA
requestors have an equal, and equally qualified, right to information[.]");
Reporters Committee, 489 U.S. at 771 ("[T]he identity of the
requesting party has no bearing on the merits of his or her FOIA request[.]").
Moreover, although the public has an interest in determining whether the
Respondent has violated the Statute by, for example, evaluating and rewarding
employees differently based on their unit status, the General Counsel has not
shown how disclosure of unsanitized appraisals would enhance a member of the
public's (as opposed to the Union's) ability to determine whether such
disparate treatment had occurred.(7)Cf.Painting and Drywall Work Preservation Fund v.
Department of Housing and Urban Development, 936 F.2d 1300, 1303 (D.C. Cir.
1991) (court found that the possibility that requested information "would
facilitate investigation of [G]overnment efforts to enforce" certain laws
constituted a "limited public interest," which was outweighed by individuals'
privacy interests in the records).

We conclude that, on balance, the public interest served by disclosure
of the requested information is outweighed by the substantial invasion of
employees' privacy that would result. Accordingly, we find that disclosure of
the requested unsanitized performance appraisals would constitute a clearly
unwarranted invasion of personal privacy, within the meaning of FOIA Exemption
6, and, thus, is prohibited by the Privacy Act. Therefore, the Respondent was
not obligated to provide the Union with the requested performance appraisals
under section 7114(b)(4) of the Statute and its failure to do so did not
violate the Statute.

B. Disclosure of Performance Award Data Is Not Barred By the Privacy
Act

The requested performance award data consists of awards given under the
Performance Management Recognition System (PMRS) and the Performance Management
System (PMS), quality within-grade increases, special achievement awards, and
letters of commendation. See GC's Exhibit No. 3. Information pertaining
to performance-based actions (such as awards, pay increases, and bonuses) and
notices of commendation is contained in the OPM/GOVT-2 system of records.(8)See 55 Fed. Reg.
35709-10 (1992). SeealsoU.S. Department of the Air Force,
375th Mission Support Squadron, Scott Air Force Base, Illinois,
51 FLRA 599, 604 (1995) (Scott AFB); SSA, 51 FLRA
at 63. We find that it is proper to take official notice of that fact in
this case.

The Authority previously has found that employees have a privacy
interest in performance award data because performance award documents may
contain favorable information that employees may wish to keep confidential and
which, if disclosed, could: (1) subject employees to embarrassment and
jealousy among co-workers; and (2) result in discord at the workplace.
SeeNational Federation of Federal Employees, Local 1482 and U.S.
Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center,
Louisville Office, Louisville, Kentucky, 45 FLRA 1346, 1353
(1992).(9) Employees who did not receive
awards also may have a privacy interest in the release of performance award
data because disclosure of that data could reveal information that could
subject those employees to embarrassment. Id.

On the other hand, the Authority has recognized that disclosure of
information relating to performance awards would serve the public interests of:
(1) ensuring that the appraisal and awards systems are administered in a
fair and equitable manner, without discrimination, and in accordance with laws,
rules and regulations and (2) monitoring the public fisc to ensure that
the agency's expenditure of money for awards is appropriate. SeeScott AFB, 51 FLRA at 606-07. The Authority has noted that the
public interest in award information has been recognized in a Government-wide
regulation, 5 C.F.R. § 293.311(a)(4), which includes name-identified
award data among the categories of information available to the public, so long
as the award information is not disclosed in a manner that would reveal an
individual's performance appraisal. SeeScott AFB, 51 FLRA at
607; SSA, 51 FLRA at 64.(10)

Where name-identified performance award data would reveal information
about an employee's performance rating and the inclusion of the names of award
recipients would not add to the public interest, the Authority has found that
employee privacy interests' outweigh the public interest in disclosure.
Scott AFB, 51 FLRA at 606-07; SSA, 51 FLRA at 64. In these cases,
the Authority concluded that the release of the information would constitute a
clearly unwarranted invasion of personal privacy. Scott AFB, 51 FLRA at
607; SSA, 51 FLRA at 64.

Unlike Scott AFB and SSA, there is no evidence in this
case that disclosure of the requested awards information would reveal an
employee's specific performance rating or other information in performance
award records that employees wish to keep confidential. As a result, the
weighty privacy interest, which tipped the balance against disclosure in
Scott AFB and SSA, is significantly reduced in the case before
us. In contrast, the regulatorily recognized public interest in disclosure
remains undiminished.

We conclude that, on balance, the employee's personal privacy interests
in this performance award data do not outweigh the public interest that its
disclosure would serve. Accordingly, we find that disclosure of the requested
performance award data would not constitute a clearly unwarranted invasion of
personal privacy within the meaning of the FOIA Exemption 6. Consequently,
based on the foregoing, we conclude that disclosure of the requested
information of nonbargaining unit employees is not barred by the Privacy
Act.

C. The Performance Award Data Is "Necessary" Within the Meaning of
Section 7114(b)(4) of the Statute

We have determined that the requested performance award data is not
prohibited from disclosure by law. We also find that this information is
necessary.(11)

Subsequent to the Judge's decision, the Authority issued Internal
Revenue Service, Washington, D.C. and Internal Revenue Service, Kansas City
Service Center, Kansas City, Missouri, 50 FLRA 661 (1995) (Member
Talkin concurring) (IRS, Kansas City), which set forth the analytic
approach to be used in determining whether information is "necessary" under
section 7114(b)(4) of the Statute. We held that a union requesting information
under that section must establish a particularized need for the information by
articulating, with specificity, why it needs that information, including the
uses to which the information will be put, and the connection between those
uses and the union's representational responsibilities under the Statute. We
also stated that a union's need will not be satisfied merely by showing that
requested information is or would be relevant or useful, but that the union
must demonstrate that the information is "'required in order for the union
adequately to represent its members.'" 50 FLRA at 670 (quoting Department of
Justice v. FLRA, 991 F.2d 285, 290 (5th Cir. 1993)). The union's
responsibility for articulating and explaining its interests extends to more
that a conclusory or bare assertion; among other things, the request for
information must be sufficient to permit an agency to make a reasoned judgment
as to whether the information must be disclosed under the Statute. As for the
agency's responsibilities, we stated that when it denies an information
request, the agency must assert and establish any countervailing
anti-disclosure interests.(12) The agency will not satisfy its burden by making conclusory
or bare assertions.

Where the parties are unable to agree on whether, or to what extent,
requested information must be provided, we will find an unfair labor practice
if a union has established a particularized need for the information and
either: (1) the agency has not established a countervailing interest; or
(2) the agency has established such an interest but it does not outweigh
the union's demonstration of particularized need.

Applying the analytical framework of IRS, Kansas City, the
record shows that the Union initially requested name-identified performance
award information in order to prepare for annual labor-management meetings,
which would include discussions of the Agency's recognition and awards program,
and to determine whether unit employees had been treated differently under the
program. At the hearing, the Union President further explained the Union's
previously stated reasons for the request by testifying that he needed the
information to engage in discussions with management officials and for
comparison purposes, to determine whether bargaining unit and non-bargaining
unit employees were being recognized in the same manner for the same
performance. He also stated that the performance award data was needed in an
unsanitized form so the Union could associate the employee's performance (as
observed by the Union) with the award and determine whether there had been
favoritism shown toward non-bargaining unit employees. According to the Union
President, during the 2 years preceding the request, the Union received
numerous complaints from bargaining unit employees that a disproportionate
number of exceptional and outstanding awards were given to non-bargaining unit
employees.

In these circumstances, we find that the Union has established a
particularized need for the name-identified awards information. The record
supports the Judge's findings that there are a small number of employees at the
facility and, of them, 16 non-bargaining unit employees perform traffic control
work similar to bargaining unit employees.(13) The record also supports the Judge's conclusions that
unsanitized performance award data concerning the non-bargaining employees was
necessary because without it, the Union could not relate the award data to what
the Union knows that specific non-bargaining employees have done with regard to
on-the-job training, flight assists, and operational errors.(14) We agree with the Judge that
without name-identified award information the Union would not be able to assess
the relationship between awards and performance based on its independent
knowledge of what bargaining unit and non-bargaining unit employees do. That
is, without the information, the Union could not determine the merit of
bargaining unit employees' complaints concerning disproportionate treatment
under the awards and recognition program and, as the Judge found, assess a
potential grievance.(15)

The Respondent does not assert any specific anti-disclosure interests.
Cf.IRS, Kansas City, 50 FLRA at 672. Instead, the
Respondent argues that data about non-bargaining unit commendations and awards
is not necessary or relevant for comparison purposes because it concerns
employees in dissimilar positions. We interpret the Respondent's argument as a
claim that the data is not relevant to prove disparate treatment and,
therefore, not necessary within the meaning of section 7114(b)(4). As explained
above, we have already rejected this argument.

We conclude that the Union has established a particularized need for
the information. The Respondent has not asserted any anti-disclosure interests
in the information. Accordingly, we find that disclosure of the names of
non-bargaining unit employees and the letters of commendation and monetary
performance awards given those employees is necessary, within the meaning of
section 7114(b)(4) of the Statute. Consequently, based on the record before us,
we conclude that the Respondent failed to comply with the requirements of
section 7114(b)(4) and, thereby, violated section 7116(a)(1), (5) and (8) of
the Statute.

D. Respondent's Request to Limit Posting of the Notice of Unfair
Labor Practices Is Denied

The unfair labor practice complaint was filed against the
FAA, New England Region, Bradley Air Traffic Control Tower, Windsor Locks,
Connecticut. The Judge found, and the record demonstrates, that the Union's
requests for information were submitted to the Bradley Air Traffic Control
Tower, which forwarded them to the FAA, New England Region for processing. The
record also shows that after the information requests were forwarded to the New
England Region, the New England Region failed to act on the requests in a
timely manner, in violation of the Statute. Consistent with the Authority's
findings in similar cases, we find that requiring the Notice to be signed by
the Regional Administrator of the New England Region and posted throughout the
FAA, New England Region will best effectuate the purposes and policies of the
Statute. As the Authority stated in U.S. Department of Treasury, Customs
Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida,
37 FLRA 603, 605 (1990):

Notices provide evidence that rights guaranteed under the Statute
will be vigorously enforced. Although violations of these rights often arise as
a result of actions taken or not taken by individuals and particular remedies
of these violations often will provide immediate benefits to individual
employees, the statutory rights benefit and accrue to all employees and the
Government as a whole. In addition, the posting of a Notice provides, for most
unit employees, the only visible indication that a respondent recognizes and
intends to fulfill its obligations under the Statute. As such, it is
appropriate to require Notices to be posted in areas other than the particular
locations where violations occurred.

Accordingly, we reject the Respondent's exception to that aspect of the
posting requirement set forth in the Judge's order.

V. Order

Pursuant to section 2423.29 of the Authority's Regulations and section
7118 of the Federal Service Labor-Management Relations Statute, the Federal
Aviation Administration, New England Region shall:

1. Cease and desist from:

(a) Failing and refusing to furnish the unsanitized letters of
commendation and performance award data, requested by the National Air Traffic
Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive
representative of certain of its employees, pursuant to the Federal Service
Labor-Management Relations Statute.

(b) Failing and refusing to respond in a timely manner to requests for
data made pursuant to the Federal Service Labor-Management Relations Statute by
the National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO,
the exclusive representative of certain of its employees.

(c) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Furnish the unsanitized letters of commendation and performance
award data, requested by the National Air Traffic Controllers Association, Y90
Local, MEBA/NMU, AFL-CIO, the exclusive representative of certain of its
employees, pursuant to the Federal Service Labor-Management Relations
Statute.

(b) Respond in a timely manner to requests for data made pursuant to
the Federal Service Labor-Management Relations Statute by the National Air
Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive
representative of certain of its employees.

(c) Post at its facilities in the New England Region copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the Regional
Administrator and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. Reasonable steps
shall be taken to ensure that such Notices are not altered, defaced, or covered
by any other material.

(d) Pursuant to section 2423.30 of the Authority's Regulations, notify
the Regional Director of the Boston Region, Federal Labor Relations Authority,
in writing, within 30 days from the date of this Order, as to what steps have
been taken to comply.

The allegations in the complaint in Case No. 1-CA-10350 that the
Respondent violated section 7116(a)(1), (5), and (8) of the Statute by refusing
to furnish the Union with unsanitized copies of the performance appraisals of
bargaining unit and non-bargaining unit employees are dismissed.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the U.S. Department
of Transportation, Federal Aviation Administration, New England Region, Bradley
Air Traffic Control Tower, Windsor Locks, Connecticut violated the Federal
Service Labor-Management Relations Statute and has ordered us to post and abide
by this notice.

We hereby notify our employees that:

WE WILL NOT refuse to furnish the unsanitized letters of commendation
and performance award data, requested by the National Air Traffic Controllers
Association, Y90 Local, MEBA/NMU, AFL-CIO, the exclusive representative of
certain of our employees, pursuant to the Federal Service Labor-Management
Relations Statute.

WE WILL NOT refuse to respond in a timely manner to requests for data
made pursuant to the Federal Service Labor-Management Relations Statute by the
National Air Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO.

WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce our employees in the exercise of their rights assured by the Federal
Service Labor-Management Relations Statute.

WE WILL furnish the unsanitized letters of commendation and performance
award data, requested by the National Air Traffic Controllers Association, Y90
Local, MEBA/NMU, AFL-CIO, pursuant to the Federal Service Labor-Management
Relations Statute.

WE WILL respond in a timely manner to requests for data made pursuant to
the Federal Service Labor-Management Relations Statute by the National Air
Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO.

_____________________(Agency)

Dated:___________ By:___________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director, Boston Regional Office, Federal Labor Relations Authority, whose
address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose
telephone number is: (617) 424-5730.

The amended unfair labor practice complaint alleges that Respondent
violated section 7116(a)(1), (5), and (8) of the Federal Service
Labor-Management Relations Statute (the Statute), 5 U.S.C. § 7116(a)(1),
(5), and (8), by failing to comply with section 7114(b)(4) in that it (1)
refused to furnish the Charging Party (Local 90 or Union) with unsani- tized
copies of the performance appraisals of bargaining unit and nonbargaining unit
employees and performance award data on nonbargaining unit employees and (2)
failed to respond to the two data requests from the Union.

Respondent's answer admitted the allegations as to Respondent, the
Union, the charge, and that the request was denied, but denied that the
information is necessary, not prohibited from disclosure by law, and denied any
violation of the Statute.

A hearing was held in Boston, Massachusetts. The Respondent, Charging
Party, and the General Counsel were represented and afforded full opportunity
to be heard, adduce relevant evidence, examine and cross-examine witnesses, and
file post-hearing briefs. The Respondent and General Counsel filed helpful
briefs. Based on the entire record, including my observation of the witnesses
and their demeanor, I make the following findings of fact, conclusions of law,
and recommendations.

Findings of Fact

The National Air Traffic Controllers Association, MEBA-NMU, AFL-CIO
(NATCA) is the certified representative of a nationwide unit of employees
appropriate for collective bargaining at the Respondent. The Charging Party is
an agent of NATCA for representing unit employees at the Respondent's Bradley
Air Traffic Control Tower (ATCT) in Windsor Locks, Connecticut.

By letter dated April 18, 1991, Bruce Means, President, NATCA Local 90,
requested that the Manager, Bradley ATCT, provide unsanitized copies of the
performance appraisals for all bargaining unit employees and nonbargaining unit
employees at the facility to the Local Union. For employees under the
Performance Management System (PMS), the appraisals were requested for the
periods of April 1, 1989 to March 31, 1990 and April 1, 1990 to March 31, 1991.
For employees under the Performance Management Recognition System (PMRS), the
appraisals were requested for the last period ending in 1990. The employees
under the PMS are all bargaining unit employees and some nonbargaining unit
employees(1), while the PMRS encompasses the remainder of the
non-bargaining unit employees.

By letter dated May 2, 1991, the Manager, Bradley ATCT, informed the
Local Union President that his requests for information were being forwarded to
the FAA New England Regional Office for processing. The manager stated that he
would inform the Local Union President upon receipt of a response from the
Region pertaining to a release of the data. Respondent did not provide any
further response to the Union on either data request prior to the issuance of
the Complaint on August 30, 1991.

NATCA Local 90 represents approximately thirty bargaining unit
employees who work in the radar room at Bradley ATCT. There are approximately
twenty-five nonbargaining unit employees at the facility of whom approximately
sixteen perform air traffic work.(2)

In the performance appraisal data request of April 18, 1991, the Local
Union President stated that the data was necessary "in order to complete an
investigation for bargain-ing unit members as it pertains to performance
evaluations, procedures, processes and determinations" and "to insure that
bargaining unit members are not being treated different[ly] because of
exercising their rights as specified by Title 5, United States Code, Chapter
71." Local president Means testified at the hearing that no specific incident
triggered his requests for information, but over the past two years he has
received numerous complaints from bargaining unit members that a
disproportionate amount of exceptional and outstanding awards are being given
to nonbargaining unit employees. He testified that the data was also necessary:
(1) to ensure that the performance appraisals of bargaining unit employees and
non-bargaining unit employees are done in an objective manner with objective
documentation and in accordance with.

FAA procedures;(3) (2) to
investigate a grievance into disparate treatment of bargaining unit and
nonbargaining unit employees; (3) to determine if bargaining unit employees and
nonbargain-ing unit employees are given the same treatment with respect to
operational errors, flight assists, on the job training, controller in charge
duties, and letters of commendation; (4) to ensure that tape talks which
are not supposed to be included on the performance appraisals are handled in
the same manner for both group of employees; (5) to see that there is no
disparate treatment by different supervisors of team members; (6) to determine
how two employees whose jobs have been moved in and out of the bargaining unit
are treated; (7) to ensure that the three traffic management coordinators
who perform air traffic work are evaluated as are the others who perform air
traffic work; (8) to see how developmentals are being handled; and (9) to
provide input to an FAA committee mentioned in Article 20, Section 5 of the
FAA/NATCA agreement which makes recommendations concerning performance
standards.

The Local Union President testified that he needs the performance
appraisal data in unsanitized form, because if the data is sanitized, he would
have no way of knowing whether the performance appraisal related to an employee
who he knows has provided on the job training or had a flight assist or an
operational error or deviation. If the performance appraisal data is sanitized,
he would be unable to determine whether it pertained to an employee who has
acted on behalf of the Union, or who, between bargaining unit and nonbargaining
unit employees, may be receiving favorable treatment from certain
supervisors.

In his data request of April 18, 1991 for the
unsanitized performance award data on nonbargaining unit employees, the
Local Union President stated that he needed the information "to discuss the
recognition and awards program in accordance with Article 21, Section 4 of the
NATCH/FAA Agreement" and to ensure "that bargaining unit employees are not
being treated different[ly] because of exercising their rights" under Title 5.
Pursuant to Article 21, section 4 of the NATCA/FAA agreement the parties meet
annually at the facility level to discuss the recognition and awards program.
The Local Union President testified that he needs the information to engage in
such discussions for comparison purposes since bargaining unit and some
nonbargaining unit personnel receive spot awards for many of the same things.
Mr. Means also testified that he needs this information to compare the
treatment of bargaining unit employees and nonbargaining unit employees on
flight assists and to see which nonbargaining unit employees in PMS have
received awards, since their awards money comes out of the total pool for PMS
which also encompasses bargaining unit employees. The performance award data on
nonbargaining unit employees is needed in unsanitized form because if the data
is sanitized, the Union would have no way of associating what the employee did
to receive the award with the award, or whether there has been favoritism shown
toward nonbargaining unit employees.

Discussion and Conclusions

Under section 7114(a) of the Statute, a labor organization which as
been accorded exclusive recognition is entitled to "act for, and negotiate
collective bargaining agreements" covering all employees in the unit. Section
7114(b)(4) of the Statute provides that an agency shall, upon request, furnish
the exclusive representative, to the extent not prohibited by law, data which
is normally maintained in the regular course of business; which is reasonably
available and necessary for full and proper discussion, understanding, and
negotiation of subjects within the scope of collective bargaining; and which
does not constitute guidance, advice, counsel or training provided for
management officials or supervisors, relating to collective bargaining.

There is no dispute that the performance appraisal and performance
award data requested is normally maintained by the Respondent, is
reasonably available, and does not constitute guidance, advice, counsel or
training provided for management officials or supervisors, relating to
collective bargaining. The remaining issues are whether the data is necessary,
whether its disclosure is prohibited by law, and whether Respondent failed to
respond to the two data requests.

The General Counsel alleges that Respondent violated section
7116(a)(1), (5), and (8) of the Statute by failing to provide the Union
with the unsanitized data it requested and by failing to respond to the Union's
two requests prior to the complaint being filed. The General Counsel claims
that the information is necessary and is not precluded from disclosure by the
Privacy Act.

Respondent now concedes that the performance appraisal data requested
as to bargaining unit members is necessary, but claims that the data regarding
nonbargaining unit members is not necessary within the meaning of section
7114(b)(4) of the Statute, and it objects to the unsanitized format.
(Respondent's Brief at 6). Respondent claims that the duties and
responsibilities of nonbargaining unit members were not shown by the General
Counsel to be similar to those of bargaining unit members so as to require
disclosure for comparison purposes. With respect to the request for an
unsanitized list of performance awards to nonbargaining unit employees,
Respondent claims that the Union does not need the information to engage in
discussions concerning awards pursuant to the collective bargaining agreement
as such discussions relate only to bargaining unit members.

Necessary

The Authority has held that section 7114(b)(4) encompasses information
necessary for an exclusive representative to perform effectively the full range
of representational responsibilities, including information necessary to enable
a union to process a grievance, file an unfair labor practice, monitor the
performance appraisal system, or prepare for negotiations. Federal Aviation
Administration, Aviation Standards National Field Office, Mike Monroney
Aeronautical Center, Oklahoma City, Oklahoma, 43 FLRA 1221, 1226-27 (1992)
(collecting cases). Further, an agency is required to furnish information
concerning nonbargaining unit positions when the information is necessary for
the union to effectively fulfill its representational responsibilities.
Department of Health and Human Services, Social Security Administration,
Baltimore, Maryland and Social Security Administration, Region X, Seattle,
Washington, 39 FLRA 298, 309 (1991).

The Authority has required the production of unsanitized performance
appraisals of bargaining unit employees and the names of unit employees who
received performance awards where necessary for a union to fulfill its
representational responsibilities. SeeU.S. Department of Health and
Human Services, Social Security Administration and Social Security
Administration Field Operations, Region II, 43 FLRA 164 (1991) (HHS)
(performance appraisals); Veterans Administration Central Office,
Washington, D.C. and Veterans Administration Regional Office, Denver,
Colorado, 25 FLRA 633 (1987) (performance awards). Such information is
necessary here to assess a potential grievance and to perform its other
contract administration and representational responsibilities with respect to
the performance appraisal and performance award programs.(4)

In this case, the Local Union needs the performance appraisal and
performance award data on nonbargaining unit employees as well in order to
determine if there has been disparate treatment between bargaining unit and
non- bargaining unit employees. The record reflects that about 64% of the
nonbargaining unit employees perform air traffic work similar to the bargaining
unit employees.(5) Thus, in
addition to determining whether there has been disparate treatment with respect
to use of official time and union representation, the Union seeks to determine
whether nonbargaining unit employees are given the same treatment with respect
to operational errors, flight assists, on-the-job training,
controller-in-charge duties, and letters of commendation. The Authority has
emphasized that a union has a significant interest in the issue of disparate
treatment and that documents relating to that issue are necessary within the
meaning of section 7114 of the Statute. U.S. Department of Transportation,
Federal Aviation Administration, New England Region, Burlington,
Massachusetts, 38 FLRA 1623, 1629 (1991), (information concerning
disciplinary action taken against supervisors for falsification of travel
vouchers found necessary for union to evaluate possible disparate treatment for
grievance arbitration proceeding); U.S. Department of the Air Force, Air
Force Logistics Command, Sacramento Air Logistics Center, McClellan Air Force
Base, California, 37 FLRA 987, 995 (1990) (information concerning the
temporary duty assignments of military personnel was necessary for the union
for comparison purposes to pursue its grievance that such assignments should
have been given to unit employees); Veterans Administration Medical Center,
Jackson, Mississippi; 32 FLRA 133 (1988) (information concerning bargaining
unit and nonbargaining unit employees was necessary for the union to determine
whether to file a grievance over a pattern of unlawful discriminatory
treatment); Department of Defense Dependents Schools, Washington, D.C. and
Department of Defense Dependents Schools, Germany Region, 28 FLRA 202, 205
(1987) (information concerning the discipline of management officials and
supervisors was necessary for the union to establish whether the unit employee
was being treated differently for the same or similar conduct). CompareUnited States Environmental Protection Agency, Health Effects Research
Laboratory, Cincinnati, Ohio, 16 FLRA 52 (1984) (performance appraisal work
sheets of three nonbargaining unit employees not necessary to assist union as
only one received an outstanding rating and his duties as a supervisory
professional were substantially different from the five nonprofessional unit
employees in question).

The data requested must be provided in unsanitized form. The number of
employees at the facility is relatively small (55), and if sanitized, the
unrefuted evidence shows that the Union would have no way of relating the
appraisal or award to what the employee is known to have done (on-the- job
training, flight assists, operational errors, representational duties, or use
of official time) to the appraisal or award.

Having made the determination that such data is "necessary" within the
meaning of section 7114(b)(4) of the Statute, it must be determined whether
disclosure of that data is nevertheless "prohibited by law" from disclosure
within the meaning of section 7114(b)(4) by the Privacy Act, 5 U.S.C. §
552(a). In United States Department of Veterans Affairs Regional Office, San
Diego, California, 44 FLRA 312, 314 (1992) (Veterans Affairs) the
Authority discussed the proper application to be made of the Privacy Act, as
follows:

With certain enumerated exceptions, the Privacy Act prohibits the
disclosure of any record concerning a Federal employee if the record is
contained in a system of records and the individual to whom that record
pertains has not consented to the disclosure. 5 U.S.C. § 552a(b). Section
(b)(2) of the Privacy Act provides that the prohibition against disclo- sure is
not applicable if disclosure of the information would be required under the
Freedom of Information Act, 5 U.S.C. § 552 (FOIA). Section (b)(3) of the
Privacy Act permits disclosure "for a routine use," which is defined in 5
U.S.C. § 552a(a)(7) as "the use of such record for a purpose which is
compatible with the purpose for which it was collected."

In order to determine whether disclosure of the requested information
in this case is permitted by section (b)(2) of the Privacy Act, we must
determine whether it is disclos- able under Exemption (b)(6) of the FOIA. That
section provides that information contained in personnel files, in addition to
medical and other similar files, may be withheld if disclosure of the
information would constitute a "clearly unwarranted invasion of personal
privacy." 5 U.S.C. § 552(b)(6).

To determine whether disclosure of the requested information would
constitute a clearly unwarranted invasion of personal privacy, we must balance
the employee's right to privacy against the public interest in disclosure.
U.S. Department of Transportation,Federal Aviation Administration, National
Aviation Support Facility, Atlantic City Airport, New Jersey, 43 FLRA 191,
199 (1991) (FAA Atlantic City Airport). In applying the balancing test,
we look to the public interest embodied in the Statute. SeegenerallyU.S. Department of the Navy, Portsmouth Naval Shipyard,
Portsmouth, New Hampshire, 37 FLRA 515, 525-35 (1990) (Portsmouth Naval
Shipyard), application for enforcement denied sub nom.FLRA v.
U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New
Hampshire, 941 F.2d 49 (1st Cir. 1991) (FLRA v. Portsmouth Naval
Shipyard). We have recognized that the "public interest" identified in the
Statute may be summarized as "the facilitation of the collective bargaining
process . . . ." Id. at 531. . . . (footnote omitted.)

Based on the Union's need for the information as set forth above, I
conclude that there is a strong public interest in the disclosure of the
requested information. Such representational interests are in the public
interest and safeguard the public interest. The Authority has emphasized that
"the early resolution of potential grievances and the proper administration of
agency performance appraisal systems are the type of public interests which
disclosure of information is intended to further." Veterans Affairs, 44
FLRA at 317.

The Respondent has not demonstrated or even asserted how or in what
manner the disclosure of the requested information would constitute a clearly
unwarranted invasion of the privacy interests of the employees involved.
However, it is generally recognized that employees have substantial privacy
interests in this area and could view disclosure of their performance
appraisals as an invasion of their personal privacy. HHS, 43 FLRA at
166-67. On the other hand, there is no indication in the record that the Union
envisioned public disclosure or desired the appraisals and the list of
performance awards for anything other than the exercise of its representational
responsibilities. Id. at 167; Veterans Affairs, 44 FLRA at
316.

On balance, the employee's privacy interests, though substantial, are
outweighed by the public interest inherent in the Union's discharge of its
obligations under the Statute to monitor and administer the collective
bargaining agreement, including the grievance/arbitration provision of that
agreement. Id.

It is concluded that Respondent violated section 7116(a)(1), (5), and
(8) of the Statute by its failure to comply with section 7114(b)(4) and furnish
the Union the unsanitized performance appraisal and performance award data
requested by letter dated April 18, 1991.

Respondent also violated section 7116(a)(1), (5), and (8) by
failing to respond to the Local Union's two data requests of April 18, 1991 in
a meaningful way until after the complaint was issued on August 30, 1991. The
Authority has held that section 7114(b)(4) of the Statute requires an agency to
respond in a timely manner to requests for information from an exclusive
representative even if the response is that the information sought does not
exist. A reply is "necessary, for full and proper discussion, understanding and
negotiation of subjects within the scope of collective bargaining" within
the meaning of section 7114(b)(4)(B). U.S. Naval Supply Center, San Diego,
California, 26 FLRA 324, 326-27 (1987); U.S. Department of the Treasury,
United States Customs Service, Southwest Region, Houston, Texas, 43 FLRA
1362 (1992).

Based on the foregoing findings and conclusions, it is recommended that
the Authority issue the following Order:

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's
Rules and Regulations and section 7118 of the Statute, it is hereby ordered
that the Federal Aviation Administration, New England Region, Bradley Air
Traffic Control Tower, Windsor Locks, Connecticut shall:

1. Cease and desist from:

(a) Failing and refusing to respond in a timely manner to requests for
data made pursuant to the Statute by the National Air Traffic Controllers
Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive
representative of certain of its employees.

(b) Failing and refusing to furnish unsanitized copies of performance
appraisals of bargaining unit and nonbargaining unit employees and an
unsanitized list of performance awards issued to nonbargaining unit employees
as requested in separate letters dated April 18, 1991 by the National Air
Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the
exclusive representative of certain of its employees.

(c) In any like or related manner interfering with, restraining or
coercing its employees in the exercise of rights assured by the Federal Service
Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:

(a) Furnish unsanitized copies of performance appraisals of bargaining
unit and nonbargaining unit employees and an unsanitized list of performance
awards issued to nonbargaining unit employees as requested in separate letters
dated April 18, 1991 by the National Air Traffic Controllers Association, Y90
Local, MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain
of its employees.

(b) Respond in a timely manner to requests for data made pursuant to
the Statute by the National Air Traffic Controllers Association, Y90 Local,
MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of its
employees.

(c) Post at its facilities in the New England Region copies of the
attached Notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the Regional
Administrator and shall be posted and maintained for 60 consecutive days
thereafter, in conspicuous places, including all bulletin boards and other
places where notices to employees are customarily posted. Reasonable steps
shall be taken to insure that such Notices are not altered, defaced, or covered
by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director of the Boston Regional Office,
Federal Labor Relations Authority, in writing, within 30 days from the date of
this Order, as to what steps have been taken to comply herewith.

WE WILL NOT fail and refuse to respond in a timely manner to requests
for data made pursuant to the Statute by the National Air Traffic Controllers
Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive
representative of certain of our employees.

WE WILL NOT fail and refuse to furnish unsanitized copies of performance
appraisals of bargaining unit and nonbargaining unit employees and an
unsanitized list of performance awards issued to nonbargaining unit employees
as requested in separate letters dated April 18, 1991 by the National Air
Traffic Controllers Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the
exclusive representative of certain of our employees.

WE WILL NOT in any like or related manner, interfere with, restrain, or
coerce employees in the exercise of their rights assured by the Federal Service
Labor-Management Relations Statute.

WE WILL furnish unsanitized copies of performance appraisals of
bargaining unit and nonbargaining unit employees and an unsanitized list of
performance awards issued to non- bargaining unit employees as requested in
separate letters dated April 18, 1991 by the National Air Traffic Controllers
Association, Y90 Local, MEBA/NMU, AFL-CIO, the agent of the exclusive
representative of certain of our employees.

WE WILL respond in a timely manner to requests for data made pursuant to
the Statute by the National Air Traffic Controllers Association, Y90 Local,
MEBA/NMU, AFL-CIO, the agent of the exclusive representative of certain of our
employees.

_____________________________(Activity)

Dated:___________ By:___________________________

(Signature)
(Title)

This Notice must remain posted for 60 consecutive days from the date of
posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance
with any of its provisions, they may communicate directly with the Regional
Director of the Federal Labor Relations Authority, Boston Regional Office,
whose address is: 10 Causeway Street, Room 1017A, Boston, MA 02222-1046, and
whose telephone number is: (617) 565-7280.

FOOTNOTES: (If blank, the decision does not
have footnotes.)

Authority's Footnotes Follow:

1. The parties were provided an
opportunity to submit supplemental briefs addressing the Supreme Court's
decision in United States Department of Defense v. FLRA, __ U.S. , 114 S. Ct. 1006 (1994) (Department of Defense). The
Respondent and the General Counsel filed briefs on this issue. The General
Counsel also filed a brief concerning whether the requested information is
necessary, within the meaning of section 7114(b)(4) of the Federal Service
Labor-Management Relations Statute (the Statute), in response to a Federal
Register notice, 59 Fed. Reg. 63995 (1994).

2. The Privacy Act regulates the
disclosure of any information contained in an agency "record" within a "system
of records," as those terms are defined in the Privacy Act, that is retrieved
by reference to an individual's name or some other personal identifier. 5
U.S.C. § 552a(a)(4), (5). With certain enumerated exceptions, the
Privacy Act prohibits the disclosure of personal information about Federal
employees without their consent. One exception to this prohibition is relevant
here. Exception (b)(2) of the Privacy Act, 5 U.S.C. § 552a(b)(2)
(the Freedom of Information Act or FOIA exception) provides that the
prohibition against disclosure is not applicable if disclosure of the requested
information would be required under the Freedom of Information Act,
5 U.S.C. § 552. Exemption 6 of the FOIA (Exemption 6)
provides, in turn, that information contained in "personnel and medical files
and similar files" may be withheld if disclosure of the information would
result in a "clearly unwarranted invasion of personal privacy[.]" 5 U.S.C.
§ 552(b)(6). If such an invasion would result, then disclosure is not
required by the FOIA.

3. Article 21, Section 4 provides: "The
Parties at the facility level agree to meet annually to discuss the recognition
and awards program at the local level."

4. As no exceptions were filed to this
aspect of the Judge's decision, we will not address it further except to adopt
the recommended order and notice to employees.

5. In this regard, the General Counsel
relies on Authority precedent issued prior to U.S. Department of
Transportation, Federal Aviation Administration, New York TRACON, Westbury, New
York, 50 FLRA 338 (1995) (FAA, New York TRACON), and,
specifically, on those portions of the decisions in which an alternative
analysis under United States Department of Justice v. Reporters Committee
for Freedom of the Press, 489 U.S. 749 (1989) (Reporters
Committee) was made.

6. We note that the Union could have
requested the performance appraisals with the names of employees deleted, but
coded in a manner that indicates the employees' unit status, in order to
fulfill its stated needs. Disclosure of sanitized and coded performance
appraisal information presumably would not identify particular employees and
their performance appraisals and, thereby, would protect against a clearly
unwarranted invasion of employees' privacy, within the meaning of FOIA
Exemption 6.

7. We also reject the General Counsel's
argument that the early resolution of grievances is a public interest within
the meaning of FOIA Exemption 6. In FAA, New York TRACON, we found that
such an interest is not a proper consideration in assessing the public interest
in disclosure under FOIA Exemption 6. SeeFAA, New York TRACON,
50 FLRA at 348.

8. We interpret the Union's request for
"letters of commendation" as encompassing "notices of commendation" contained
in OPM/GOVT-2. 57 Fed. Reg. at 35710.

(a) The following information from both the [Official Personnel
Folder] and employee performance file system folders, their automated
equivalent records, and from other personnel record files that constitute an
agency record within the meaning of the FOIA . . ., about most
present and former Federal employees, is available to the
public:

(6) Position descriptions, identification of job elements, and those
performance standards (but not actual performance appraisals) that the release
of which would not interfere with law enforcement programs or severely inhibit
agency effectiveness. Performance elements and standards (or work expectations)
may be withheld when they are so intertwined with performance appraisals that
their disclosure would reveal an individual's performance appraisal.

(b) The [OPM] or agency will generally not disclose information where
the data sought is a list of names, present or past position titles, grades,
salaries, performance standards, and/or duty stations of Federal employees
which, as determined by the official responsible for custody of the
information:

(1) Is selected in such a way that would reveal more about the
employee on whom information is sought than the six enumerated items, the
disclosure of which would constitute a clearly unwarranted invasion of personal
privacy; or

(2) Would otherwise be protected from mandatory disclosure under an
exemption of the FOIA.

. . . .

11. The Judge found that there was no
dispute that this information is normally maintained by the Respondent, is
reasonably available, and does not constitute guidance, advice, counsel or
training within the meaning of section 7114(b)(4)(C).

12. Member Wasserman did not
participate in IRS, Kansas City and, as it is unnecessary to the
disposition of this case, he expresses no opinion as to whether section
7114(b)(4) requires the Authority to take into account an agency's
countervailing anti-disclosure interests when determining whether information
is "necessary."

13. The Respondent presented no
evidence to support its position that bargaining unit and non-bargaining unit
positions are not similar enough for comparison purposes.

14. Our finding of particularized need
for name-identified award information is not dependent on the availability of
the name-identified performance rating information which we have found not
disclosable under the Privacy Act (see IV.B, supra). The Union
has established a particularized need for the awards information by showing
that the information is needed to compare awards with what the Union knows
about employees' performance (based on its independent observations of
employees in the workplace) to determine whether there has been disparate
treatment of bargaining unit employees.

15. In this regard, information may be
found necessary within the meaning of section 7114(b)(4)(B) when it is required
to determine whether to file a grievance. United States Immigration and
Naturalization Service, United States Border Patrol, Del Rio, Texas, 51
FLRA 768, 776 (1996).

ALJ's Footnotes Follow:

1. The nonbargaining unit employees who are covered by PMS
are those who are GS-13 or below who are non-supervisory. These employees
include: three clericals; one Planning and Procedures Specialist; one Training
Specialist for the Radar Room; one Training Specialist for the Tower; three
Traffic Manager Coordinators; one Data Systems Specialist; and one Quality
Assurance Specialist.

2. Those nonbargaining unit employees who perform air
traffic work are: ten Supervisory Air Traffic Control Specialists; one Planning
and Procedures Specialist; one Radar Room Training Specialist; one Tower
Training Specialist; one Quality Assurance Specialist; and three Traffic
Management Coordinators. The nonbargaining unit employees who do not perform
air traffic work are: one Air Traffic Manager; one Assistant Air Traffic
Manager; one Area Manager for Programs; three Area Managers; one Data Systems
Specialist; and three clericals.

3. Article 20, Section 1 of the FAA/NATCA agreement
provides, "Performance evaluations will be made under the provisions of
applicable law and Agency directives and a copy shall be given to the
employee."